339: Can employees now claim indirect associative disability discrimination?
In Follows v Nationwide Building Society, the Employment Tribunal has, for the first time in UK law, upheld a claim of indirect associative discrimination on the grounds of disability.
Under the Equality Act 2010, indirect discrimination can occur where an employee personally suffers a disadvantage as a result of a provision, criterion or practice, which is discriminatory in relation to a relevant protected characteristic and cannot be shown to be a proportionate means of achieving a legitimate aim. However, personally suffering the disadvantage is not a requirement of the EU Directives underpinning the Equality Act. The European Court of Justice held in the 2014 case of Chez Razpredelenie Bulgaria that the concept of associative discrimination could in principle be extended to indirect discrimination.
In Follows v Nationwide Building Society, Mrs Follows was a senior lending manager for Nationwide Building Society. Although she attended the office two to three days per week, she was on a homeworking contract so that she could care for her disabled mother. Nationwide decided to reduce the number of senior lending managers in a process which also introduced a requirement for them to be wholly office-based in order to improve supervision. Mrs Follows could not accept this requirement and was made redundant. She subsequently brought various claims, including a claim for direct and indirect associative discrimination on the grounds of disability.
Noting that the Equality Act should be read in a manner consistent with the European Court of Justice’s decision in Chez Razpredelenie Bulgaria, the tribunal upheld Mrs Follows’ claim of indirect associative disability discrimination. By the nature of their role, employees caring for disabled relatives are less likely to be able to satisfy a requirement to be office-based than non-carers. A requirement to be office-based therefore put Mrs Follows at a substantial disadvantage. Nationwide had not taken reasonable steps to avoid this disadvantage by discussing alternatives such as allowing hybrid working to continue and had failed to provide sufficient evidence on which its decision was based. The employment tribunal also ruled that the need for on-site supervision itself contained a discriminatory element, and therefore could not amount to a legitimate aim. Even if it had been legitimate, making Mrs Follows redundant was not a proportionate means of achieving that aim.
This is an employment tribunal decision and therefore not binding. It remains to be seen whether it will be followed by other tribunals. Following brexit, lower courts and tribunals still have to interpret UK law in line with EU law, but the Court of Appeal and the Supreme Court can depart from EU law if it appears right to do so. In any event, this case is a useful reminder to employers who are currently in the process of bringing staff back into the workplace to ensure the reasons behind an employee’s reluctance to return are fully understood and properly considered, particularly where they may involve caring responsibilities.